- Property that passes by survivorship normally skips the estate, but for a dependant support claim the law deems certain joint assets to be part of the net estate.
- A joint account is counted only to the extent the money belonged to the deceased, and the claimant must prove that.
- A support application is generally due within six months after the certificate of appointment is granted, with a possible exception for undistributed property.
When someone dies, a house or bank account held jointly often goes straight to the surviving owner and never becomes part of the estate. If you were being supported by the person who died, you may find that the estate is small even though the person owned a lot.
Ontario law has a specific answer to that problem. This article explains how a dependant support claim treats joint assets, who can bring one, and what limits and deadlines apply. It is general information, not advice on your situation.
The starting point: survivorship skips the estate
Property passes to the estate trustee only if no one else has a right to take it by survivorship. A deceased joint tenant's interest therefore goes to the surviving joint tenant, not to the people named in the will.
That is the general rule for ownership. A dependant support claim works differently, because it asks the court to look at what the deceased owned and arranged before death, not only at what is left in the estate.
Who can make a dependant support claim
If the deceased did not make adequate provision for the proper support of their dependants, the Superior Court of Justice may order adequate provision out of the estate. A dependant is a spouse, parent, child or brother or sister of the deceased to whom the deceased was providing support, or was legally obliged to provide support, immediately before death.
For this claim, the word spouse is wider than married spouse. It covers unmarried partners who lived together continuously for at least three years, or who are in a relationship of some permanence and are the parents of a child. It also includes former spouses whose marriage ended in divorce.
Which joint assets can be counted
For a support claim, the law deems the capital value of certain transactions the deceased made before death to be part of the net estate. The list includes the following.
- Money deposited in an account in the deceased's name and another person's.
- Property held at the date of death by the deceased and another as joint tenants.
- Trust accounts in the deceased's name in trust for others.
- Life insurance on the deceased's life that the deceased owned.
Whether a particular jointly held asset qualifies can turn on how it came to be held jointly. A lawyer can look at the history of the asset and tell you how the rule is likely to apply.
Limits, exceptions and deadlines
For joint deposits, only the portion of the funds that belonged to the deceased immediately before the deposit is counted. The person making the claim must prove the funds belonged to the deceased, and a dependant who was the other party to the transaction must prove their own contribution.
Banks and other holders are protected if they have not been told. Payments under these transactions may still be made unless a certified copy of a suspensory order has been personally served on the holder. The rule also does not affect creditors' rights in any transaction where they have rights.
| Issue | What the law says |
|---|---|
| General deadline | No application more than six months after the certificate of appointment is granted |
| Late application | The court may allow one at any time for any part of the estate still undistributed on the date of the application |
| Effect of serving notice | The personal representative generally must not distribute until the court decides, unless everyone entitled to apply consents or the court orders otherwise |
What to do next
- Note the date the certificate of appointment was granted, because the six-month period runs from that date.
- List every account, property and policy the deceased held with someone else, and who put money in.
- Gather evidence of the support the deceased was providing before death.
- Ask a lawyer promptly, since an estate may be distributed once time passes.
Because these claims depend on proof of who contributed what, early advice from a lawyer is worth having.
Frequently asked questions
Does survivorship property automatically go into the estate for a support claim?
Not for ownership. Survivorship property normally passes to the surviving owner and not into the estate. For a support claim only, though, the law deems certain joint assets, such as joint deposits and property held as joint tenants, to be part of the net estate.
Can a joint bank account be counted if the survivor put money in?
Only the part that belonged to the deceased immediately before the deposit is counted. A dependant who was the other party must prove their own contribution.
I missed the six-month deadline. Is it over?
Not necessarily. The court may allow an application at any time for any part of the estate that is still undistributed on the date of the application. Speak to a lawyer quickly.
Can a common-law partner claim dependant support?
Possibly. For this claim, spouse includes unmarried partners who cohabited continuously for at least three years, or who are in a relationship of some permanence and are parents of a child. The claimant must also have been supported by the deceased, or been owed support, immediately before death.
Sources
- Estates Administration Act, R.S.O. 1990, c. E.22, s. 2(1) (e-Laws) — Ontario e-Laws
- Succession Law Reform Act, R.S.O. 1990, c. S.26, ss. 57-58 (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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